Tuesday, May 15, 2007

Dennis “Rocka” Knibbs was a black defendant facing a white jury – ten jurors were white and two were of Asian ancestry – in his murder trial in Vancouver.When this fact was mentioned early in the trial on the Downtown Eastside Enquirer blog, it drew a response from Lanre Aba Habib, mother of 21 yr. old Trumaine “Ekoh” Habib whom Knibbs, now 31, was accused of shooting multiple times in the New Wings Hotel.Habib wrote:“And as my son was half white, all I ask the court is that they would give his white side some form of JUSTICE”.

She got justice.

But questions linger about whether justice was stretched a little thin in places during the trial which saw Knibbs, the Montreal born son of Jamaican immigrants, convicted of second degree murder and sentenced last Thursday to 25 years in prison, with a mandatory ten years before being eligible for parole.Defense lawyer, Glen Orris, had argued in the hours before the verdict that Knibbs was being denied his right to fully defend himself.

Orris had felt ambushed when the jury was told at the last minute that they could consider whether the victim, Habib, had acted in self-defense when firing the first shot.Orris said he would have defended his client from this angle had he learned of it before the jury was heading off to deliberations.

“Who goes into a hotel they were just banned from toting a SHOTGUN?!!…he intended to what? Use it as a coat hanger?”

Even laypersons discussing this murder case instinctively gravitate toward the issue of whether Habib was defending himself or provoking Knibbs when he fired that first shot.Early in the case, Habib’s mother wrote to the Enquirer,

“…all I want to say is that my son was defendeding (sic) himself from two thugs that had nothing but bad blood towards him and he defended himself as he knew how to…”

After the verdict, a Knibbs supporter who wished to remain anonymous, argued that Habib’s conduct was more provocation than self defense:

“Who goes into a hotel they were just banned from toting a SHOTGUN?!! … Its obvious why this guy went back with a deadly weapon.. to use deadly force. I'm sure if he took it, he intended to what? use it as a coat hanger?”

The fact that the victim, Habib, had brought a shot gun to the New Wings Hotel in the hours before the shooting is a fact that was agreed upon by both the prosecution and the defense in this trial.Leroy Charlie, a 19 yr. old New Wings resident, had allowed Habib to stay in his room and later testified that Habib had walked in, pulled a shotgun out of his pants, and showed it to him.

Other facts too were agreed upon by both sides:Later in the day on which Habib had brought the shotgun into the hotel, Liscombe and Knibbs had been looking for Habib; Liscombe pushed on the door of Charlie’s room and as the door opened partially and then slammed shut again, Knibbs joined Liscombe in pushing on it – that’s when Habib fired the first shot from his shotgun. That first and only shot fired by Habib hit Liscombe in the gut, a wound from which he would die a few hours later in St. Paul’s hospital.A few days before Habib brought the shotgun into the hotel, he and Liscombe had gotten into a fist fight in the hallway of the hotel and Habib, the smaller of the two, had grabbed a baseball bat and whacked Liscombe across the head, leaving a cut that required a hospital visit and stitches.After that fight, Habib had been barred from the hotel by the manager but had returned to Charlie’s room with a concealed shotgun and an intent, he told Charlie, to “lay low” for awhile.

In closing statements, prosecutor Michael Luchencko told the jury that it was likely that Habib had brought the shotgun into the hotel simply because of the nature of the business he was in – Habib, Knibbs, and Liscombe were drug trafficking in the New Wings -- and not specifically to harm Liscombe or Knibbs.

Judge Silverman instructs the jury: first he says they could, then he says they couldn’t, then he says they could

After the verdict, a supporter of Knibbs commenting on the Downtown Eastside Enquirer blog, accused the jury of letting race influence their decision.

"Let me ask the jury this , 'How could you say that Ecko acted on self defense if he was barred from the New Wings . Means he isnt allowed in . How do you know defendent (sic) wasn't tryin to escort him out of there'. . . . You have it out for black people and I really think that it's a nasty attitude."

But if the jury's decision was colored by anything, it may have been Justice Silverman's instructions about whether they could consider if Habib had acted in self-defense when firing the first shot. First he said they could, then he said they couldn’t, then he said they could.

Trouble started when Justice Silverman, before sending the jury out to deliberate, instructed them that they could consider the issue of whether Habib had been acting in self-defense. The minute the jury left the room, Orris stood up and objected, telling the judge that it was unfair to put this issue to jurors for the first time as they were heading out to deliberate. Orris argued that the prosecution had not raised this issue during the trial, denying Knibbs an opportunity to defend himself in relation to it.

Orris -- who had told the jury the day before in closing statements that this case “screams out” for an acquittal based on the fact that Knibbs had been the one acting in self defense – now gave the judge an idea of how he would have defended his client if he had known that the jury would be asked to consider whether Habib had been acting in self-defense. Orris said he would have gotten the jury to distinguish between whether it was Knibbs or Liscombe that Habib may have felt the need to defend against.

Orris won over the judge. Justice Silverman recalled the jury and gave them strict instructions not to consider whether Habib had been acting in self-defense: “Take that off your radar.”

The jury didn’t take it off their radar.The next day, after deliberating until almost dinner time, the jury sent the judge questions.They asked: “When Liscombe and Nabib forced entry, did Nabib have the right to fire the shotgun?Was that an unlawful act?” And they asked for a brush-up on the “provocation” defense, specifically the part that states that some “unlawful act” must have suddenly been committed to provoke a person into committing murder.Even Orris’ receptionist smelled trouble here; she had dropped into the courtroom with an armful of papers and said in worried tone, “They’re talking about provocation.”Orris, a 30 year veteran of court rooms, responded, "Who knows why." He did not sound happy.

Even a layperson sitting in the gallery could see that the jury’s questions hinted at trouble for Knibbs.The jury appearing to be reviewing the defense of “provocation”, a place where the judge told them to go only if they had already found Knibbs guilty of murder.The provocation defense would allow the jury to drop a murder conviction down to the lesser conviction manslaughter.The provocation defense works like this: If Habib’s firing of the shotgun into Liscombe’s belly could be viewed as an unlawful act that had “provoked” Knibbs into a violent response, then Knibbs could be convicted on the lesser crime of manslaughter and be out on parole in 4 years.But if Habib had a right to fire that shotgun – i.e. if he had been exercising his right to self-defense -- he was not committing an unlawful act and the jury’s option of dropping a murder conviction to manslaughter was dead.

Orris put up a fight.It was getting late, about 8:30 p.m.; the lights were out in the halls of the cavernous court building, the sheriffs were on overtime, and the Canucks were in overtime a few blocks away, playing what would be their final playoff game.

Orris argued to the judge that prosecutors had “never taken the position in opening or closing statements that Habib was acting in self-defense in acquiring the gun.”And there had been “no suggestion” by the prosecution during the trial that Habib had acted in self-defense.Orris further pointed out that raising this issue was unfairly “putting the onus on Mr. Knibbs to prove that Mr. Habib was not acting in self-defense”.It was too late for Knibbs to mount a defense now, Orris said.

“I didn’t get a chance to say to this jury,” Orris argued, “‘Nobody saw guns in the hands of either of these men’”, either Knibbs or Liscombe, as they entered the room where Habib was staying.And Knibbs took out a baton only after Habib fired the first shot.And Knibbs had intervened in a fight a few days earlier between Liscombe and Habib, punching Habib once, just enough to put an end to the fight.“So what are the chances he wanted to blow this guy away from 30 centimeters with a shotgun?,”Orris told the judge.“I didn’t get a chance to argue that.Don’t go there.”

The judge went there.Justice Silverman told Orris that he intended to rule against him.He intended, he said, to instruct the jury to use a “common sense” standard for whether Habib had been acting in self-defense.Orris protested: You’re going to say to the jury that the criteria for self-defense that you instructed them to apply to Mr. Knibbs, don’t apply to Mr. Habib, and that for Habib the standard to be applied is “common sense which is much wider”.

“Give me ten minutes”, the judge said, as he ducked out to prepare the tricky wording of his instructions to the jury.Orris turned to a sheriff: How are the Canucks doing?

Justice Silverman recalled the jury and instructed them to decide whether Habib had a “perceived need to defend himself” – that’s the key phrase to remember, he told them -- when he fired that first shot.In a general sense, the judge explained, “a person has a legal right to defend himself from danger or threat of danger.”You will have to be satisfied that Habib did have that “need”, before you can decide that he had the “right” to fire the first shot.“There are clearly some common sense limitations that you’re going to have to consider”, he further explained.You will have to determine that:

Mr. Habib’s “reaction in firing the shotgun was not excessive” in those circumstances.

The judge emphasized, "Apply common sense."

Common sense was exactly the standard that Habib’s mother wanted applied in this case.In a comment left at the Downtown Eastside Enquirer near the start of the trial, the Surrey mother referred to the judge’s opening comments, “COMMON SENCE (sic) IS WHAT THE JUDGE KEPT SAYING TO THE JURY I TRULY HOPE THAT HE USES SOME."

Anyone with an ounce of common sense can see that this case isn’t over yet. As Knibbs sat in the prisoner’s box for the first time after the verdict was read, his tie now missing, a tall, young, Mulatto guy who had arrived with his Asian girlfriend, spoke with him through the glass. He encouraged Knibbs to hold out hope for his appeal. “Now three judges get to deal with it,” his pal reminded him. "And when they see what’s up, they’ll see what’s up.”